Thursday, February 18, 2010

Anwar to challenge judge's non-recusal, trial put off

The trial judge to Anwar Ibrahim's sodomy case has today decided not to stand down from hearing the case despite allegations of bias and lying over his inaction against Umno-owned Utusan Malaysia's coverage of the trial.

He said there was no evidence that he had lied in court as accused by the defence team.

"The allegation that I lied in arriving to the decision (not to take action against Utusan) is incorrect. After looking at the testimony by the witness, and the affidavit of the application, there is no truth to such allegations," said High Court judge Mohamad Zabidin Mohd Diah (left).

The question, he pointed out as to whether a rational thinking person would question whether the sodomy incident between the applicant (Anwar) and the complainant would be based on other evidence or weightage eminating from outside the trial.

I am certain that any right rational people would not see the decision as biasness on my part," the judge said.

Furthermore, Mohamad Zabidin said any move to remove himself from the trial would be seen as "shying away" from the responsibility given to him as a judge, an oath which he has undertaken of a job entrusted to him.

The trial was then postponed to March 25 for mention to allow the defence to file an appeal to the apellate court challenging Zabidin's decision not to recuse himself.

Anwar's lawyer Sankara Nair said he would be filing an appeal over Justice Mohamad Zabidin's decision of not recusing himself tomorrow.

Sankara also told reporters that Anwar's lawyers had filed a notice of motion, and also notice of appeal to the Federal Court following yesterday's Court of Appeal decision not to quash the present sodomy charge.

The sodomy trial is expected to resume with the crucial cross-examination of star witness Mohd Saiful Bukhari Azlan.

At the start of the session this morning, Solicitor-General II Mohd Yusof Zainal Abiden asked whether the defence team headed by senior counsel Karpal Singh would appeal to the higher courts against the judge's decision not to recuse himself.

Karpal said that the defence would appeal but they were prepared to continue with the cross-examination.

"We do not want to be accused of delaying tactics. We are prepared to carry on."

'Blatant lies'

The court then recessed for a while after exchange an between Karpal and Mohamed Yusof:

Karpal: We do not want to be accused by the prosecution of delaying the trial.

Yusof: Prosecution is not making the allegation.

Karpal: It is the media.

Yusof: Prosecution is duty-bound to explain to the public what has transpired.

Karpal: The judge may be bound by the authorities to provide a stay following an impending appeal over his recusal which was rejected. There is a black or strong hand at play. Let me correct myself; there is not one black hand but two, namely Najib (Prime Minister Najib Abdul Razak) and Rosmah (Najib's wife, Rosmah Mansor).

At this juncture, Anwar says from the dock: Conspiracy. All these are blatant lies.

The judge admonishes Anwar.

Karpal: You cannot stop Anwar from saying that as it is just that...blatant lies. We are prepared to continue.

Three DNA, forensic experts

The conduct of Anwar's trial is being closely watched by the international community following demands from Australian MPs and a number of world leaders to drop the charge.

Dr Brian McDonald, a DNA expert from Sydney, Australia, and forensics experts Dr C Damodaran, from Chennai, India, and Dr David Wells from Melbourne, Australia are on hand to act as advisers to Anwar's defence team.

Karpal had on that day submitted that a judge must be impartial and honest when conducting a trial.

"If the judge showed elements of a real danger of biasness in his decision and also lying, then he has no choice but to step down," he said.

"How could your lordship arrive at that conclusion (to dismiss the caution against Utusan)?" asked Karpal in reference to the judge's decision not to reprimand Utusan over a photo caption published on Feb 5.

Utusan had published a Bernama photo and caption which showed star witness Mohd Saiful Bukhari Azlan, pointing to a bed and stating it was where he had allegedly been sodomised by Anwar as opposed to what the witness had testified in camera (in private with the judge rather than in open court).

Citing a Malaysiakini report which showed that the judge had stated the details in an open court as opposed to his earlier claim that it was made in camera, the senior lawyer also accuses Justice Mohamad Zabidin of lying.

The defence had also complained to the judge for not taking action against Utusan for its Feb 4 frontpage headline, 'Tak rela diliwat lagi' (Not willing to be sodomised again) and 'Berhenti kerana tidak mahu diliwat lagi' (Quit because he did not want to be sodomised again) on page 3.

Anwar, 62, is charged with sodomising Mohd Saiful, his former aide at the Desa Damansara condominium on June 26, 2008.

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About Me

Mohd Kamal Abdullah frequently writes in Malaysiakini, MalaysiaToday and in the FORUM column of MALAYSIA CHAT www.malaysia-chat.com. Kamal holds a law degree and was active in Malaysian Politics (a component party of Barisan Nasional) until of late, to concentrate on pursuing a post-graduate law degree in United Kingdom.